Inventions Not Patent Able

8/3/2019 Inventions Not Patent Able

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Scope of Patentability UnderThe Patents Act


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What is an Invention?

Sec.2(1)(J)

Inventionmeans a new product orprocess involving an inventive

step and capable of industrial

application


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Patentable subject matter

Invention must

relates to a Process or Product or

bothbe new (Novel)

involves an inventive step

be Capable of industrial application

not fall under Section 3 and 4


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NEW

MEANSInvention must not be

Published in India or elsewhereIn prior public knowledge or prior public

use with in India

Claimed before in any specification in

India


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Inventive step

Afeature of an invention that

involves technical advance ascompared to the existing knowledgeor

have economic significance or both

andmakes the invention not obvious toa person skilled in the art


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Industrial applicationmeans

Invention is capable ofbeing made or used

in any kind of

industry


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Section 3 exclusions

Section 3(a) Frivolous inventions

Inventions contrary to well

established natural lawsExamples Machine that gives more than 100%

performance

Perpetual machine


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Section 3(b)Commercial exploitation or primary useof inventions, which is

Contrary topublic order or

MoralityExamplesGambling machine,

Device for house-breaking ,


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Section 3(b)Commercial exploitation or primary useof inventions , whichCauses serious Prejudice to

health or human, animal, plant life or to the environment

Examples Biological warfare material or device,

weapons of mass destruction

Terminator gene technology,

Embryonic stem cell


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Checks and Balances

Section 3(b)Excludes patents on

GMOs exploitation of which could be

contrary public order or morality orprejudicial to human, animal or plant life orhealth or to the environment

Effect : Only genetically modified micro-

organisms (GMOs) which do not fall undersection 3 (b) are patentable.


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Section 3 ( c )

Mere Discovery of a Scientific Principle or

formulation of an Abstract Theory or

discovery of any living thing or

discovery of nonliving substance occurring innature

ExamplesNewtons Laws

Superconducting Phenomenon as suchProperty of certain material to withstandmechanical shock

Discovery of micro-organism

Discovery of natural gas or a mineral


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Checks and BalancesSection 3(c)Excludes patents on

Naturally occurring Micro-organisms

EffectGenetically modified microorganisms (GMOs)are however, patentable.


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Section3 (d)The mere discovery of a new form of aknown substance which does not result

in the enhancement of the knownefficacy of that substance


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Section3 (d)ExplanationFor the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixture of isomers,

complexes, combinations and other derivatives of known substancesshall be considered to be the same substance, unless they

differ significantly in properties with regard toefficacy.

Examples Crystalline forms of known substance


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Checks and Balances

Section 3 (d) ExplanationEffectSalts, esters, ethers, polymorphs, metabolite, pure

forms, particle size, isomers, complexes,combinations and derivatives of a known substancewith enhanced efficacy are patentable


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Section3 (d)Mere discovery of any new propertyor new use for a known substance orof the mere use of a known process,

machine or apparatus, unless suchknown process results in a newproduct or employs at least one newreactant.Examples New use of Aspirin for heart ailments,

Mere new uses of Neem


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Section 3(e)Substance obtained by mere admixture resulting only inthe aggregation of the properties of the components thereof ora process for producing such substance

Examples Combiflam [Paracetamol (Antipyretic) + Brufen (analgesic)]

Solution of sugar and color additives in water to form a softdrink

However,A mixture resulting into synergistic properties ofmixture of ingredients however, may be patentable- Soap, Detergents, lubricants etc


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Checks and Balances

Section 3 ( e )

Effect Substance obtained by mere admixture

resulting only in the aggregation of theproperties of the components thereof or

a process for producing such substance

are not patentable

HoweverSynergistic formulations are patentable


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Section 3 ( f )

Mere arrangement or re-arrangementor duplication of known devices, eachfunctioning independently of one

another in a known wayExamplesA Bucket fitted with torch,

An Umbrella with fanA Clock and radio in a single cabinetA flour-mill provided with sieving


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Section 3(h)Method of Agriculture or Horticulture

ExamplesCultivation of algae ,

Producing new form of a known plant,

Preparation of an improved soil

However,Agricultural Equipments are patentable



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Section 3(i)Any process for medicinal, surgical, curative, prophylactic,diagnostic, therapeutic or other treatment of human beings

or a similar treatment of animals to render them free ofdisease or to increase their economic value or that oftheir products

Examples Removal of cancer tumor Removal of dental plaque and carries Surgical processes Processes relating to therapy Method of vaccination, Blood transfusion


However,Treatment performed on tissues or fluids permanently removed from the bodySurgical,therapeutic or diagnostic Apparatus or instrumentsare patentable


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Section3 exclusionsSection 3(j)

Plants & animals in whole or any partthereof other than microorganisms,but including seeds, varieties an d

species and essentially biologicalprocess for production or propagationof plants & animals


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Section 3(j) Plants & animals in whole

Parts of plants & animals

Seeds Varieties & species

Essentially biological processes

for propagation or production ofthe animals & plants


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Checks and BalancesSection 3(j)

Excludes patents on Plants and animals in whole or any parts

thereof, including seeds, varieties andspecies and essentially biological processes

for production or propagation of plants andanimalsExamples

Clones and new varieties of plants A process for production of plants or animalsif it consists entirely of natural phenomenasuch as crossing or selection

Essentially biological Process


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Section 3(k)* mathematical method or* business method or* algorithms or

*

computer programme per seExamples Computer program by itself or as a record on a

carrierHowever New calculating machine

combination of hardware and software

is patentable



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Section 3(l)A literary,dramatic, musical or artistic work or anyother aesthetic creation including cinematographicwork and television productions

These subject-matters fall under thecopyright protection



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Section 3(m)A mere scheme or rule or method of performing mentalact or method of playing game

ExamplesScheme for learning a languageMethod for solving a crossword puzzle,Method of learning a languageMethod of teaching /learning

However,Novel apparatus for playing game or carryingout a scheme is patentable



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Section 3 (n)Presentation of informationExamplesAny manner or method of expressing

information whether by

spoken words

Visual display

symbols

diagrams

Information recorded on a carrier



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Section 3 (o)

Topography of integrated circuits.

ExamplesMask works - circuits layout



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Section 3 (p)

Inventions which areTraditional Knowledge or an aggregation or duplication of knownproperties of traditionally known component or componentsExamplesTraditional Knowledge already in public domain- Wound healing property of HaldiHowever,Any value-addition using Traditional Knowledge leading to

a new process or product ,which is novel with inventivestep and industrial applicability,

Extraction of Azadirachtin from Neem

can be patented



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Section 4Inventions falling within Section 20(1)of the Atomic Energy Act, 1962 are not

patentableEffectInventions relating to compounds of Uranium, Beryllium, Thorium,Plutonium, Radium, Graphite, Lithium and more as notified by Central

Govt. from time to time.

Non Patentable inventions

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Inventions Not Patent Able